In its landmark ruling on 7 May 2025, the Constitutional Court has opened the doors to access to information and accessible formats for people with disabilities. It has also paved the way for South Africa to ratify the 2013 Marrakesh Treaty.
For decades, Blind SA has been lobbying against the ‘book famine’ and lack of provisions for blind and visually impaired persons in the current copyright law. This discrimination has gravely affected their social and economic development, education, work and leisure opportunities and other aspects of their lives, including lack of equal access to reading material that sighted persons have taken for granted. The law has in fact made copying and reuse of copyright work in accessible formats illegal, without permission from rightsholders, essentially criminalising people for needing to access information.
Historical Context: 1999 – 2019
As early as 1999, the library and educational sectors raised concerns at a multi-stakeholder workshop convened by the Department of Trade and Industry (DTI) about the discriminatory nature of the current copyright law against people with disabilities. DTI proposed amendments to the Act in 2000. More restrictive provisions were proposed for education, libraries and archives, and minimal provisions were included for people with visual impairments. A task team mandated by the South African University Vice-Chancellors’ Association of South Africa (SAUVCA) and the Committee of Technikons (CTP), predecessors of University South Africa (USAf), challenged the proposed amendments to the Act in Parliament. These proposals were subsequently withdrawn and not included in the Amended Copyright Act of 2002, which then only addressed needle time for musicians. The task team had already succeeded in stopping more restrictive draft Regulations being passed in 1998.
From 2002 until 2009 there was a legislative impasse with regard to copyright reform. Due to many problems in the music industry, the Department of Trade and Industry decided to commence a process of reform in 2009. It commissioned various research studies and established a Copyright Review Commission to investigate ongoing problems in the music industry. The DTI convened workshops for stakeholder groups and input was given on various aspects of the copyright law. To ensure a holistic approach to the 1978 Act, the DTI was provided with important documents and resources relating to education, libraries and other information services, and persons with disabilities, and other relevant issues sourced from WIPO, WTO, UNESCO, Creative Commons, the International Federation of Library Associations and Institutions (IFLA), Electronic Information for Libraries (EIFL)’s Model Copyright Law, and from regional copyright project findings and local organisations. Appropriate clauses and provisions were also submitted to the DTI relating to countries with progressive copyright laws where developed countries were enjoying benefits that South Africa, a developing country, still did not have in its copyright law.
In July 2015 the DTI published a draft Copyright Amendment Bill for public comment and it was also discussed at a multistakeholder workshop convened by the DTI in Gauteng. After receipt of many submissions and necessary edits and amendments, the Bill was forwarded to Parliament in 2017. The Bill included Section 19D with appropriate provisions for people with disabilities, including those who are blind, deaf, dyslexic or suffer from other disabilities that prevent them from accessing information.
In 2013, South Africa strongly supported the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The Treaty came into effect in 2016, but South Africa did not ratify it, stating that its national copyright law would need to be amended first to include appropriate provisions for people with disabilities. Some years later, it confirmed that once the Copyright Amendment Bill has been signed, it will move to ratify the Treaty.
Parliamentary Approval; Presidential Rejection
The first Parliamentary process took over two years but the Bill was finally passed by both Houses of Parliament in 2019. It was then referred to the President for assent, but he did not act on the Bill for a period of 15 months. The President was being lobbied strongly by rightsholders, collecting societies and multinationals, and was receiving unprecedented pressure from the US Trade Representative’s Office (USTR) and the EU Commission, to stop the Bill. This led him to decide not to sign the Bill and to refer it back for Parliamentary review on 16 June 2020. He requested a review of certain clauses, including fair use, exceptions for education and academic activities, libraries, archives, museum and galleries, and temporary copies, questioning their constitutionality. Notably, these reservations did not include Section19D.
This also led to the Portfolio Committee on Trade and Industry agreeing to send the Bill for retagging from a Section 75 Bill (National) to a Section 76 Bill (Provincial), which resulted in a drawn-out process through all nine Provincial Legislatures.
Blind South Africa Litigation
According to previous commentary, “Recognising that the referral would result in an inordinate delay, Blind SA approached the Gauteng High Court in 2021, primarily seeking to have the Copyright Act declared unconstitutional to the extent that it “limits and/or prevents persons with visual and print disabilities accessing works under copyright that persons without such disabilities are able to access”. Blind SA also sought an order reading in the provisions of the amendment bill that sought to give effect to the Marrakesh Treaty”.[1]
On 7 December 2021, the Gauteng High Court ruled that the current Act is unconstitutional as it relates to people with blind and visual impairments . On 21 September 2022, the Constitutional Court confirmed this ruling and made a landmark decision, marking the first time in its 27-year history that it addressed a copyright law case. The Court recognised that the absence of provisions for accessible formats in copyright law constitutes disability discrimination. This ruling set a global precedent, affirming that copyright law, like any other law, must be interpreted in a way that aligns with constitutional principles, including the rights of people with disabilities. As an interim solution, the Court read-in a temporary provision (Section 13A) into the current Act, allowing for the creation of accessible formats without permission, and suspended the declaration of invalidity for 24 months to allow Parliament to amend the Copyright Act.[2]
After a thorough review and passage through the provincial legislatures, the Bill was passed again on 29 February 2024 and sent to the President for a second time for assent. The approved Bill provides appropriate exceptions for people with disabilities in Section 12D, as well as other relevant exceptions that they (and others) need in their daily lives, e.g. fair use, education and academic activities, temporary copies, provisions for libraries, archives, museums and galleries who provide services and access to knowledge to these communities.
The President again did not sign the Bill by 24 September 2024, resulting in the aforementioned temporary provisions of Section 13A, being rendered invalid. This created a hiatus in the law, making accessible formats for blind and visually impaired people illegal once again, without permission from rightsholders.
After various communications were sent by Blind SA to the Presidency, without a satisfactory result, Section 27, on behalf of Blind SA, announced on 10 October 2024, in a media statement that it “has launched an urgent application in the Constitutional Court against President Cyril Ramaphosa for failing to sign the Copyright Amendment Bill”.[3]Five days later, the President referred the Copyright Amendment Bill, with its sister Performers’ Protection Bill, to the Constitutional Court for a ruling on its constitutionality.
ConCourt ruling in May 2025: Opening the door for access to information, accessible formats and ratification of Marrakesh Treaty
As reported in the press, the Constitutional Court’s ruling on 7 May 2025, “builds on a 2022 ruling and is seen as a crucial step in upholding the rights of people with visual impairments.[4] However, by its inclusion of Section 19D of the Copyright Amendment Bill, it is important to note that the Court’s ruling extends to people with other disabilities, including deafness, dyslexia, learning and other disabilities who have experienced prohibitions or restrictions on access to information without the use of sub-titles and captioning, more visual content, enlarged print, audio description, braille or other accessible formats. Section 19D aims to ensure that people with various disabilities can access and use copyright works in accessible formats without requiring prior copyright permission or paying high fees for conversion of materials. South Africa can now ratify the Marrakesh Treaty, opening the door to cross-border exchange of copyright works in accessible formats.
Christo de Klerk, President of Blind SA, confirmed the Court’s findings as follows:
Blind SA’s application for direct access to the Constitutional Court was justified and granted.
Section 19D of the Copyright Amendment Bill replaces the Court crafted Section 13A which will form the legal framework for Government to ratify the Marrakesh Treaty and will remain in effect.
The reason for Blind SA’s application to the Constitutional Court was a direct result of the President’s failure to do anything after the National Assembly had sent the Bill to him for assent, and his poor communication with Blind SA. He is ordered to pay Blind SA’s costs at the rate of two counsel.
Acknowledging the landmark ruling made by the Constitutional Court, Jace Nair, CEO of Blind SA said “this will allow blind people to have better access to published work so that it can improve our education and access to reading and material and thereby improve our participation in the economy and the country. For the last 20 years we’ve been trying to advocate for the exceptions in legislation.” [5]
Blind SA looks forward to ratification of the Marrakesh Treaty and positive outcomes for the Copyright Amendment Bill and Performers’ Protection Bill in the President’s referral matter that is scheduled to be heard by the Constitutional Court on 21 and 22 May 2025.
Luca has a PhD from the UFRJ Graduation Program on Public Policy, Development and Strategies (PPED/UFRJ) with a thesis on ‘Copyright and AI Generated Works’ and is a Director of the Brazilian Copyright Institute. He is a research fellow at the Centre for IT & IP Law (KU Leuven) and a post-doctoral researcher at the National Institute of Citizen Science in Brazil. He is a guest professor at the Graduation Program on Public Policy, Development and Strategies (PPED/UFRJ) and professor at the Specialization Program on Intellectual Property Law at PUC-RJ.
Counsel: Susan Štrba
Dr. Susan Isiko Štrba combines teaching and research with providing policy and legislative advice and technical training to governments, intergovernmental organizations and civil society. She focuses mainly on human rights, intellectual property (IP), trade and development. Dr Isiko Strba is the author of International Copyright Law and Access to Education in Developing Countries: Exploring Multilateral Legal and Quasi-Legal Solutions, a leading guide to the functioning of international copyright law for the public interest in developing countries. She has also published numerous journal articles in the field of human rights, trade, IP and development.
She currently researches the interface of technology, intellectual property and the African Continental Free Trade Area. She is a member of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP) and a member of the Executive Council of the Society of International Economic Law (SIEL). Dr Isiko Strba has taught Intellectual property, competition law and human rights in various institutions including: the Boston University (Geneva International Campus), The Graduate Institute, Trade Policy Training Centre in Africa (TRAPCA), the International University in Geneva, University of the Witwatersrand, South Africa and the WIPO Academy.
Counsel: Andrés Izquierdo
Andrés Izquierdo is Senior Research Analyst for our project on the Right to Research in International Copyright. He conducts high-impact research, provides training to a global network of change-makers, and connects a global academic network to the work of global and domestic organizations that represent researchers, libraries, museums, archives, educational and research institutions.
Before joining PIJIP, Andrés Izquierdo practiced law through his award-winning intellectual property and cyber law practice in Colombia. He has been named one of the best entertainment law attorneys in Colombia by the publications Best Lawyers (2020), and top Intellectual Property practitioner by Chambers and Partners (2014-2020), and is author of the book Cyberlaw by Wolters Kluwer. Izquierdo was previously Business and Legal Director for Sony Music Entertainment in the Andean Region, and litigation partner in Palacio, Izquierdo & Ballesteros, an intellectual property law firm in Colombia. He has LLM degrees in Intellectual Property from American University Washington College of Law and from the University of Turin – WIPO, and a law degree from Universidad de Los Andes.
Communications Director: Ben Cashdan
Ben Cashdan is a economist and television producer in South Africa. He was an economic advisor in the South African Presidency under President Nelson Mandela, focusing on capacity building and local economic development. Since 2000 Ben has served as executive producer of a number of television series on democracy and development for global broadcasters. In 2015 Ben co-founded ReCreate South Africa, a coalition of creators and users of copyrighted material in South Africa, working together for fair and balanced copyright reform and access to knowledge.
Ben has a masters degree in Social and Political Sciences from Kings College Cambridge and a Postgraduate Certificate in Economics from the London School of Economics. Ben also continued his postgraduate studies at Johns Hopkins University in Baltimore, Maryland in the Department of Economic Geography. He was South African producer for Harry Belafonte’s biographical documentary Sing Your Song. Ben has also produced 4 episodes of The World Debate on BBC World News. He developed and produced the first season of South2North on Al Jazeera English, the first global talk show to be produced in Africa for a major global broadcaster. In December 2013 Cashdan produced an episode of BBC Question Time on South Africa after Mandela.
Ben has directed a number of broadcast media projects on democracy and development in partnership with agencies including the World Economic Forum, the United Nations Development Programme and the African Leadership Academy.
Director: Sean Michael Flynn
Professor Flynn researches and teaches on the intersection of intellectual property, international law, and human rights. Professor Flynn designs and manages a wide variety of research and advocacy projects that promote the public interest in intellectual property and information law. Professor Flynn Chairs the Global Expert Network on Copyright User Rights and is a founding member of the Global Congress on Intellectual Property and the Public Interest.
He is Editor in Chief of Infojustice.org, a leading public interest law and policy blog. He is a special faculty appointment at American University Washington College of Law, visiting Scholar at the University of Amsterdam’s Institute for Information Law (IViR), and Senior Research Associate at the University of Cape Town’s Intellectual Property Unit. Prior to joining WCL, Professor Flynn completed a Fulbright Fellowship, was clerk to Chief Justice Arthur Chaskalson, South African Constitutional Court and Judge Raymond Fisher, U.S. Court of Appeals for the Ninth Circuit, practiced law at Spiegel & McDiarmid and the Consumer Project on Technology, and served on the policy team advising then Assistant Attorney General for Civil Rights Deval Patrick.
